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Genetic Information Nondiscrimination Act passes in U.S. House of Representatives
The Genetic Information Nondiscrimination Act of 2007 (GINA) was passed in the U.S. House of Representatives on Wednesday, by a vote of 420-3. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. Title II addresses employment and provides that it shall be an unlawful employment practice for an employer--
- to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
- to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
- to request, require, or purchase genetic information with respect to an employee or a family member of the employee.
Powers, remedies and procedures are patterned after the Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) and section 1977A of the Revised Statutes of the United States (42 U.S.C. 1981a), existing anti-discrimination federal legislation.
The Act is available online at The Library of Congress site. The National Human Genome Research Institute has also posted information on their website.
Continue Reading...PA Income Tax and Withholding Summary for Employment Related Programs and Benefits
In many significant ways, Pennsylvania Income Tax and Withholding laws differ from federal tax regulations. The most notable difference involves Pennsylvania's taxation of elective employee contributions to 401k and other retirement plans. Having completed the mind numbing task of researching this area, I decided that it might be helpful to others to have a resource for some of their Pennsylvania tax questions. Or, you may consider using this post as an excellent cure for insomnia.
In any case, the following is a general summary of Pennsylvania's tax treatment of various employee benefits and includes links to additional information. The summary is not intended as a substitute for professional tax advise as individual tax situations vary widely.
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Employment Screening and Background Checks - Part III
Many employers utilize some form of pre-employment testing to assist them in hiring decisions. A 2000 study by the American Management Association reported that 69% of firms used some form of job skills testing and 33% used psychological testing.
There are general legal restrictions on the use of pre-employment testing in addition to the general prohibitions on discrimination found in Title VII and the Pennsylvania Human Relations Act. The Uniform Guidelines on Employee Section Procedures prohibit the use of a test or selection process that has an adverse impact on individuals in a protected class unless the test has criterion-related, content and construction validation studies. The validation studies must consist of empirical data demonstrating that the test is (1) predictive of performance of important elements of job performance; (2) contains content which tests important aspects of performance on the job; and (3) consists of procedures that assess identifiable characteristics that have been determined to be important to job performance.
Both the ADA and the Pennsylvania Human Relations Act prohibit the use of "medical tests" prior to an employer extending a conditional offer of employment. A medical test is generally one that seeks information about an individual's physical or mental health or impairments. Courts examining whether a test is "medical" have looked at the following factors: (1) administration or interpretation of the test by a medical professional; (2) intent of design of the test to reveal a medical or mental impairment; (3) conducting the test in a medical setting; (4) measurement of the individual's psychological responses to performing a task; (5) necessity of medical equipment to perform the test; and (6) invasive nature of the procedure.
Following is a summary of some of the more popular pre-employment tests employed by businesses to assess applicants:
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Employment Screening and Background Checks - Part II
Newspaper headlines are replete with cases of embezzlement by employees and violence in the workplace. Government statistics note alarming trends for increases in criminal activity at the workplace. To stem this tide, employers have turned to Credit Reports and Criminal Record Checks as two sources of information they may legally obtain about prospective and existing employees. However, there are statutes that govern the use of the data employers obtain.
- Credit reports - The Fair Credit Reporting Act, 15 U.S.C. § 1681, (FCRA) requires employee consent and disclosure. Employees or applicants must be notified of the existence of a report, consent to the disclosure of the report and be provided with a copy of the report if it results in an adverse personnel action. The employer must certify that it is requesting the credit report for employment purposes, that it has made the required written disclosure to the individual, and that it has obtained the individual's written authorization permitting the procurement of the report. The employer must also certify that it will provide the required disclosures if any information in the report results in adverse action against the individual.
Be aware in using credit reports to evaluate candidates that the Federal Bankruptcy Act prohibits an employer from discrimination in hiring or retaining an employee solely because the employee or someone associated with him/her has filed for bankruptcy or has not paid a debt dischargeable in bankruptcy, see Thomas v. Dennis Real Estate, 1989 WL 114165 (E.D. Pa. 1989). Many employers question the benefit of credit checks since they are prohibited from using bad credit as a reason for not hiring someone when the individual his filed for bankruptcy. The result is only those individuals with late payment histories and charge offs can be weeded out, while those with bankruptcies can not be treated discriminatorily.
- Criminal Record Check - A Pennsylvania employer's use of criminal history record information must be in compliance with the Criminal History Record Information Act. Felony and misdemeanor convictions may be considered only to the extent to which they relate to the applicant's suitability for employment in the position for which he/she has applied, 18 Pa.C.S.A. § 9125(b).
If the employer's decision not to hire the applicant is based in whole or in part on criminal history record information, the employer must notify the applicant in writing, 18 Pa.C.S.A. § 9125(c).
By implication the Act appears to prohibit consideration of arrests, or convictions of summary offenses. Therefore, consider only felony and misdemeanor convictions, not summary convictions or charges without a conviction.
These are examples of issues of which you should be aware when doing any employment screening. You should consult with an employment law attorney before you begin a screening program. There are numerous issues that must be considered.
Pre-Employment Screening and Background Checks - Part I
There is a growing trend among employers to use various pre-employment testing and background checks. Screening can range from credit reports and criminal checks to education and reference verification or motor vehicle records checks. I frequently answer questions for employers who are concerned about the legal issues related to obtaining this information. In my next few posts I will address some frequently asked questions.
What is an Employer's obligation to obtain background information on prospective and existing employees?
- Employers are under a common law duty to exercise reasonable care in selecting, supervising and controlling employees.
- The duty includes reasonable investigation into the prospective employee's work experience, background, character and qualifications.
- Look at the relationship between your customers and employees - is the potential for harm foreseeable? What kind of work and contact with the public do your employees have?
- Look at relationships between employees - has any conduct or history made the potential for harm foreseeable?
How can I minimize the risk of being sued when using background information?
- Apply the same procedure to all employees and/or applicants to avoid claims of discrimination in evaluation.
- Observe the requirements imposed by the statutes governing the data you obtain.
In my next post we will review some of the statutes that apply to some of the more commonly used reports.
